Hall v. Wallace , 25 Ala. 438 ( 1854 )

LIGON, J. —

The demurrer was improperly overruled. The plea is in abatement for matters de hors the record of the case in which it is pleaded, and is not verified by the oath of the party pleading it. This is fatal on demurrer. — 1 Chit. PL 460-62, 454.

It is also bad in substance. The action is trespass to try titles, and is subject to the same rules which govern in ejectment at common law. — -Code, § 2209; Clay’s Dig. 320, § 43-4-5. We have already held, upon the best authority, that neither party is concluded as to title by a verdict and judgment in ejectment; and if the plaintiff persist in repeating his action, after being frequently defeated, the successful defendant may resort to a court of equity for an injunction, and thus secure his quiet. — Adams on Eject. 294, 315-16 ; Bacon’s Abridg. (Bouv. ed.) title Ejectment (1); Camp v. Forrest, 13 Ala. 114; Mitchell v. Robertson, 15 ib. 412. As a former judgment or recovery cannot be pleaded in bar to a subsequent suit between the same parties in the action of ejectment, it would seem to follow, that the pendency of another action between them, at the time the second suit is brought, will not be good in abatement.

The evil of repeated suits between the same parties, on the same title, is now partially remedied in this State by section 2219 of the Code, which makes the second verdict for the defendant in such cases conclusive against the plaintiff, as to the title thus twice put in issue. This section, however, does not apply to the present case. ■

The motion to dismiss the appeal cannot be sustained, since the names of the sureties for cost are shown in the record itself, although they are not mentioned in the clerk’s certificate. This is sufficient.

Let the judgment of the court below be reversed, and the cause remanded.